Bangalore District Court
The State Represented By vs A1: Sri.Mohammed Usman Sharief on 14 November, 2016
1 C.C.No.14099/2007
IN THE COURT OF III ADDL. CHIEF METROPOLITAN
MAGISTRATE
BENGALURU CITY
Dated this 14th November 2016
Present: Sri.S.T.Devaraja, B.Sc., LL.B.,
III Addl., Chief Metropolitan
Magistrate, Bengaluru City.
C.C.No:14099/2007
Complainant : The State represented by
Sub-Inspector of Police,
Madivala Police Station,
Bengaluru.
(By Sr.APP, Bengaluru)
V/s
Accused: A1: Sri.Mohammed Usman Sharief,
S/o Sri.Khasim Sharief,
Aged about 56 yrs,
A2: Smt.Shameem @ Shameem Shahida,
W/o Mohammed Usman Sharief,
Aged about 43 yrs,
2 C.C.No.14099/2007
A3: Smt.Asphath Unnisa @ Sahida
Ashraf Unnisa,
W/o Sri.Mohammed Tabrez Alam,
Aged about 25 yrs,
A4: Smt.Aseena,
(Split up in C.C.No.2039/2013)
W/o Sri.Nowshad Khan,
Aged about 40 yrs,
A1 to A4 R/at:No:40/3,
2nd Main, 3rd Cross, Madivala,
Benglauru-68.
(By Sri.PRM Adv., Bengaluru)
---
JUDGEMENT U/Sec.355 of Cr.P.C.,
Case No. : C.C.No.14099/2007
Date of offence : 14/6/2005
Complainant : Dr.G.V.Paramashivaiah
Accused : As detailed above
3 C.C.No.14099/2007
Offence : U/Sec.448 and 506
R/w Sec.34 of IPC
Charge : Accused claimed to be tried
Final order : Acquitted
Date of order : 14/11/2016
The brief statement
and the Reasons for the
decision : As follows
---
JUDGEMENT
The P.S.I. of Madivala Police have filed the chargesheet against the accused persons for the offences punishable U/Sec.448 and 506 R/w Sec.34 of IPC.
2. The brief facts of the case of the prosecution is as follows:
It is the case of the prosecution that on 14/6/2005 at about 11-30 a.m. all the accused persons with an common 4 C.C.No.14099/2007 intention to grab the site bearing No.63/1-1 belonging to CW1 trespassed the same and on questioning by CWs.1 and 2 all the accused persons threatened with dire consequences. On the complaint of CW.1 by name Sri. Dr.G.V.Paramashivaiah the Madivala Police have registered a case in Crime No.631/2005 and after completion of investigation filed the chargesheet.
3. A split up C.C.No.2039/2013 is registered against accused No.4. The accused persons appeared before the Court and engaged the services of a counsel. The charges framed by the learned predecessor and the accused persons claimed to be tried. The prosecution has examined PW1 to PW5 and relied upon the documents as per Ex.P1 to Ex.P5.
The 313 Cr.P.C., statement of the accused persons is recorded. No defence evidence adduced by the accused persons.
4. Heard, perused the entire case records.
5. The only point that arises for my consideration is: 5 C.C.No.14099/2007
1.Whether the prosecution has proved the case beyond all reasonable doubt for the offences punishable U/Sec.448 and 506 R/w Sec. 34 of IPC?
2. What Order?
6. My findings on the above points are as hereunder:
Point No.1: In the Negative Point No.2: As per final order For the following:
::REASONS::
7. Point No.1: In order to prove the case the prosecution has examined CW1 by name Sri.Dr.Paramashivaiah as PW1. By identifying the accused persons it is his evidence that on 14/6/2005 he was looking after the construction work and at about 11-30 a.m. all the accused persons trespassed and insisted to vacate the shed as well as the site and threatened with dire consequences. It 6 C.C.No.14099/2007 is his evidence statuesque order was in force. It is his evidence he has lodged the complaint as per Ex.P1 and identified the signature as per Ex.P1(a). It is his evidence the police have visited the place of incident and conducted the mahazar as per Ex.P2 and identified the signature as per Ex.P2(a). It is his evidence he has handed over the copy of letter dated 8/6/2009, certified copy of order sheet and Judgement of O.S.No:1045/2005 as per Ex.P3 to Ex.P5.
8. During the course of cross examination conducted on behalf of the accused persons it has been elicited in detail with regard to the civil and criminal proceedings wherein he was also the party to the proceedings and the said fact has been admitted. It is the admission with regard to O.S.No.10163/1998 and the dispute in respect of the property No.63/1/1. It is also the admission about the pendency of RFA No:1511/2011 as well as the contents of the revenue documents. The suggestions denying the case of the prosecution and for having lodged a false complaint have been denied.
7 C.C.No.14099/2007
9. The prosecution has examined Dr.Santhosh as PW2. By identifying the accused persons it is his evidence the CW1 is his father-in-law who is the owner of property bearing No.63/1/1. It is his evidence that on 14/6/2005 the CW1 called him and that he visited the site at about 11.00 a.m. and found the accused persons trespassed the site and on questioning by CW1 the accused persons quarrelled and threatened with dire consequences.
10. Like that of PW1 the PW2 was subjected to a lengthy cross examination and it has been elicited with regard to pendency of civil and criminal proceedings. It is the admission between 13/3/2005 to 14/6/2005 he has not intimated the Police about the order of statuesque. The suggestion for giving false evidence has been denied.
11. The prosecution has examined Sri.H.Anil as PW3. It is his evidence that on 14/6/2005 the Police have visited the 8 C.C.No.14099/2007 place of incident at 5.00 to 5-30 p.m. and conducted the mahazar as per Ex.P2 and obtained the signature as per Ex.P2(b). During the course of cross examination conducted on behalf of the accused persons it has been elicited the schedule of the disputed property. It is the admission the Police have not called him and that he visited the place. The suggestion denying his presence as well as denying the contents of Ex.P2 has been denied.
12. The prosecution has examined Sri.Poornachandra Thejaswi as PW4. It is his evidence that on 14/6/2005 the Police have visited the place of incident at 5.00 to 5-30 p.m. and conducted the mahazar as per Ex.P2 and obtained the signature as per Ex.P2(c). During the course of cross examination conducted on behalf of the accused persons it has been elicited the schedule of the disputed property. It is the admission the Police have not called him and that he visited the place. The suggestion denying his presence as well as denying the contents of Ex.P2 has been denied. 9 C.C.No.14099/2007
13. The prosecution has examined Sri.R.Vijaykumar- Police Inspector as PW5. It is his evidence he has received the records from CW6 for further investigation and conducted the spot mahazar as per Ex.P2 and identified the signature as per Ex.P2(c) and received the copy of the Sale Deed, Sketch and Katha Certificate and in view of his transfer he has handed over the records to CW8 for further investigation.
14. During the course of cross examination conducted on behalf of the accused persons it is the admission with regard to pendency of civil suit. The suggestion for having created and manipulated the documents and the suggestions denying the case of the prosecution as well as the incident and his portion of investigation have been denied.
15. By referring to the available oral and documentary evidence it was the submission of the learned Sr.APP the prosecution has proved the case beyond all reasonable doubt, hence, prayed to convict the accused persons. 10 C.C.No.14099/2007 As against the said submission it was the submission of the learned defence counsel the available evidence is not sufficient to prove the guilt of the accused persons. It was his submission about the civil dispute and the said fact has been admitted by the respective witnesses. It was the submission the PWs.1 and 2 are related witnesses. With all other grounds the learned defence counsel prayed to acquit the accused persons.
16. On consideration of the materials available on record there is necessity to scrutinize the evidence of PWs.1 and 2 with great caution as they are the related witnesses. It is an admitted fact with regard to pendency of Civil and Criminal proceedings. Admittedly, the prosecution has not examined the other witnesses. The order sheet reveals inspite of repeated issuance of summons, witness warrant the other charge sheeted witnesses remained absent from appearing before the Court, hence, the prayer of the learned Sr.APP to issue summons to other witnesses was rejected. 11 C.C.No.14099/2007
17. On consideration of the available evidence with that of the contents of the respective documents various omissions and contradictions are forthcoming which goes against the case of the prosecution. It is an admitted fact about the pendency of civil dispute in respect of the disputed site. The available evidence is not sufficient to the case of the prosecution.
18. It is an admitted fact with regard to civil dispute in respect of the property and repeated civil and criminal proceedings by and between the CW1 and the accused persons. It is also an admitted fact with regard to interim orders in the civil proceedings. It is necessary to mention there is utter failure of the prosecution to prove the guilt of the accused persons. Consequently resulting in failure to prove the case beyond all reasonable doubt. Under the said circumstances, this Court has no option except to acquit the accused persons. Hence, I answer Point No.1 in the NEGATIVE.
12 C.C.No.14099/2007
19. Point No.2: In the result, I proceed to pass the following:
::ORDER::
Acting under Sec.248(1) of Cr.P.C.
the accused persons are hereby ACQUITTED for the offences punishable U/Sec.447 and 506 R/w Sec.34 of IPC.
The bail bond of the accused Nos.1 to 3 stand cancelled.
The accused No.1 and accused No.2 are at liberty to withdraw the cash security of Rs.2,000/- each after appeal period.
Office to keep the entire record till the disposal of split up case in C.C.No:2039/2013 against the accused No.4.
(Dictated to the stenographer on computer, transcribed by her, revised and corrected by me and then pronounced in the open Court on this the 14/11/2016).
(S.T.Devaraja), III Addl., Chief Metropolitan Magistrate, Bengaluru City.13 C.C.No.14099/2007
::ANNEXURE::
1. List of witnesses examined for the prosecution:
PW1 : Dr.G.V.Paramashivaiah PW2 : Dr.Sannthosh PW3 : Sri. H.Anil PW4 : Sri. Poornachandra Tejaswi PW5 : Sri.R.Vijayakumar
2. Documents marked on the side of the prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : Spot Mahazar Ex.P2(a) : Signature of PW1 Ex.P2(b) : Signature of PW3 Ex.P2(c) : Signature of PW4 Ex.P2(c) : Signature of PW5 Ex.P3 : Copy of Letter Ex.P4 : Certified copy of Order 14 C.C.No.14099/2007 Sheet of O.S.No.1045/2005 Ex.P5 : Certified copy of Judgement of O.S.No:1045/2005 3. Material objects marked : NIL 4. Defence Evidence: NIL --- III Addl., Chief Metropolitan Magistrate, Bengaluru City. 15 C.C.No.14099/2007 16 C.C.No.14099/2007